Trial Flashcards
7 reasons to raise character evidence
all parties agree
adduced by D or given in answer to Q asked by D in cross examination and intended to elicit it
important explanatory evidence
relevant to an important matter in issue between P and D
substantial probative value in relation to an important matter in issue between D and coD
evidence to correct a false impression given by D
D has made an attack on another person’s character
meaning of relevant to an important matter in issue between D and P
- propensity to be untruthful (unless its not suggested Ds case is untruthful) shown by previous offence where D was untruthful or previous conviction where D pleaded NG, gave evidence and wasn’t believed.
- propensity to commit crime of same description or category or significant factual similarities (categories are theft and sexual) (unless makes it no more likely D is guilty)
unless too much time passed since past offence
when is character evidence contaminated
when witnesses collude to fabricate evidence
what happens if character evidence is contaminated
in CC judge can acquit or order retrial
procedure to rely on bad character evidence
serve notice of intention to use it on court and other parties and provide written record of previous convictions
how can D oppose the use of bad character evidence
apply to court for it to be excluded, send application to court and other parties
which bad character evidence gateways can only be used by P
important explanatory evidence
correct false impression given by D
D attacked anothers character
which bad character evidence gateway can only be used by D
matter in issue between D and Co-D
when can the court exclude bad character evidence
it would have such an adverse effect on fairness of procedings that it ought not to be included
order of trial at MC
PS case: opening speech and witnesses poss no case to answer Ds case and witness (d first witness) Ps closing speech Ds closing speech verdict sentencing
order of trial at CC
poss preliminary hearing arraignment at PTPH jury sworn in aka empannelled Ps case: opening and witnesses poss no case to answer Ds case Ps closing speech Ds closing speech Judge summing up verdict sentencing
if D gives evidence as a witness when should they be called in the order of witnesses
first
how can D change plea
apply in writing asap
what is included in judges summing up
law and evidence
law - burden and standard of proof, requirements of offence and other issues raised in case
evidence - facts to be determined, evidence and arguments raised, inferences from facts
can judge require jury to take longer than 2.10 hrs
yes
if found NG do you pay costs
no, if no legal aid then judge orders costs to be paid by state
what if jury cannot reach verdict in reasonable time
judge will discharge them and P will order retrial
examination in chief
cannot ask leading Qs, only open Qs
ask Qs to witness to repeat whats in witness statement - they tell their story
leading Q
suggestive of answer
cross examination
put case to witness and Ds defence or cannot rely on it later
undermine credibility
obtain favourable evidence
can use closed and leading questions
putting your case
suggest alternative version of events - must put Ds defence in cross examination or cannot rely on it in their own evidence
re-examination
party who called witness can ask more Qs re matters that arose in cross examination
only open non-leading questions
min age to give evidence at trial
any age - but under 14 give unsworn evidence
any age must be able to understand the seriousness or matter and responsibility to tell truth - assumed unless evidence to contrary
what ages are competent
all ages are competent
who is a compellable witness
any competent person
compellable
can be summoned and compelled to testify
impact of failing to attend or attending but refusing to answer Q
contempt of court
when is a person not competent to be a witness
unable to understand Qs and give answers that can be understood
what if person can satisfy competency test but have defective intellect
they can give unsworn evidence
who decides if a person has competence to be a witness
judge
are D and Co-D competent witnesses for P
no - some exceptions for co-D
when can Co-D be a witness for P
att-gen files notice to abandon P
order made in separate trials
CoD formally acquitted
CoD pleads guilty
can co-D give evidence for D
competent but not compellable
can D give evidence in their own case
competent but not compellable
can spouse of D be compelled to give evidence
if spouse not coD for P - not unless special offence for D- compellable for coD - only special offences if spouse is coD never compelled to give evidence
what are special offences for spouse to be a witness
assult, injury, threat of injury to spouse or under 16, sexual offences, attempted or aiding/abetting where victim is under 16
can D use special measures as a witness
no unless mental disorder that would impair their effectiveness as a witness
when can a witness apply for special measures
fear, sexual offences, gun/knife crime, under 18, mental or physical disorder
when does a witness automatically qualify for special measures
sexual offence - otherwise court decides
what must judge warn jury when special measures are used
warn them that special measures have been used ut cannot suggest anything prejudicial about D giving rise to need for measures
how to sentence
determine category based on harm and culpability determine starting point and range based on aggravating and mitigating factors factors to reduce sentence guilty plea dangerous offender totality principle compensation and ancilliary orders reasons
guilty plea reductions
1/3 at MC before sent to CC
1/4 after PTPH
1/10 first day of trial
can be reduced to zero during trial
how is second half of sentence usually served when sentence over 2 years
on license unless offender of particular concern
how do offenders of particular concern seek license for second half of offence
don’t get it automatically but can apply for parol then may be released any time from half way point to end of sentence. then released on license
how long does a sentence have to be to be eligible for suspension
14 days to 2 years
how long can a sentence be suspended for
6m - 2 years
max fine that can be imposed if suspended sentence is breached but court doesn’t give effect to custodial sentence
2500
what is the operational period
period for which a sentence is suspended
what is the supervision period
period during which conditions must be met during a suspended sentence
how long can supervision period be
must end no later than operational period
when does a suspended sentence take effect
conditions are broken or another offence is commited
what must a court do when a suspended sentence is breached
order sentence to take effect either for original length or shorter length
if that would be unjust then add conditions or change operation period or suspension period
what if D breaches community sentence
if without reasonable excuse D gets warning
what if D breaches community sentence several times in 12 months
back to court: more onerous community order or resentence and can get custodial sentence even if original offence wasn’t custodial
what if further offence committed during community sentence
leave community order in place or revoke if new offence requires custody or resentence
do spouse compellability rules apply when divorced
no if divorced at date of trial it is like they were never married
what sentencing powers do CC have on appeal
can impose any sentence that MC could have imposed
process for appealing to HC by way of case statement
apply to MC within 21 days of decision
application identifies Qs of law
MC then state a case for HC which means clerk will prepare draft statement f case to set out issues
prepared with magistrate or judge who heard case then sent to P and D for amendments
final version sent to appealing party to lodge with HC
give notice to other party that it is done
what power does CofA have is att-Gen appeals to it on basis that sentence is unduly lenient
CofA has power to increase sentence but it must be a sentence that CC could have passed
when can att-gen appeal to C of A on basis that sentence is unduly lenient
must be indictable, specified either way or CofA gave permission
can the prosecution appeal against an acquittal
no but can appeal against a ruing during the trial that effectively ended the trial or significantly weakened the prosecutions case
when does the rule of double jeopardy not apply
murder attempted murder manslaughter kindnapping sexual offences drugs aggravated arson
what is the rule of double jeopardy
cannot try D for same offence twice
when will CofA qush a conviction and order a retrial
new and comeplling evidence and interests of justice
when can a MC decision be challenged by JR
makes order they had no power to make (ultra vires) or MC breaches rules of natural justice (fair hearing or bias)
when is a conviction not unsafe despite a mistake having been made
guilty verdict would have still resulted
how long do you have to appeal a conviction to C of A
28 days of conviction at CC not sentence
how to appeal conviction to C of A from CC
D has 28 days to serve appeal notice with draft grounds of appeal
serve on registrar at criminal appeal c of a
set out grounds on which it is unsafe
on receipt of docs registrar gets transcript of evidence from trial and judges summing up
given to judge who decides if permission to appeal and public funding is granted
effect of making an appeal that is completely without merit
judge may dismiss appeal and make a direction as to loss of time
what is a direction as to loss of time
time in custody waiting for outcome of appeal doesn’t count to time D must serve for their sentence as it normally would
when must C of A order retrial
if appeal against conviction is allowed and interests of justice require it
if court satisfied that D would have been acquitted then no retrial necessary otherwise order retrial unless unfair to D or somehow inappropriate
